New York Estate Planning & Elder Law Blog
TWO SCHOOLS OF THOUGHT
It is never an easy decision to make decisions for another person when it is the other person who has to live with the consequences of those decisions. That is doubly true when there is not any family relation or close ties that bind you. When you are deciding for a family member, say for example an aged parent or grandparent, at least you have the benefit of years worth of conversations and their larger thoughts on certain key matters of health and health decisions. You can look back and remember what they did or said in certain similar scenarios. What about those who do not have any such close relatives who decide for them? There is a class of professional guardians across the state and country who are professional in every sense of the term. They examine an issue and consider the best way to get the answer by asking further questions of the experts, such as doctors, therapists, social workers and so on. The hardest decision that any guardian has to make, regardless of whether or not they had the benefit of ties of affinity, is whether or not to terminate treatment for an incompetent patient. By what yardstick do they measure their decisions?
If a patient already expressed their clear desire in the past as to what they want to do, the decision that the guardian must make will be much easier. The 1972 New Jersey case of In Re Quinlan sums up the decision making in this case best. In Quinlan, a young woman was in a vegetative state from which she was not likely going to recover. Her father applied to the Court to be her guardian so he could have the life supporting medical apparatus removed. The trial Court denied this application, although the state Supreme Court found a Constitutional right to privacy in such decisions to remove oneself from life support that the state cannot intervene in. Since she could do it personally, her guardian could do the same in her absence. The legal protections that control a guardian’s decisions ensure that guardians do not make their decisions with improper motive.
In the absence of an ability to determine what the patient may want or not want in any given circumstances; a living will or other similar document does not always exist to cover the facts that are at issue. Again, a close relative or friend has the benefit of years or decades of past decision making to fall back on to know what the patient would decide under the circumstances if there is any decision that is closely analogous. A professional guardian must make their decision based on whether or not they believe that the patient would be better off or not if treatment terminated. An elderly, frail patient engaging in chemotherapy very well may be better off if they stopped chemotherapy. This later determination may be called an objective test, since there is a distinct absence of subjective decision making from the patient.
Regardless of the means by which a guardian reaches their decision, it is never easy to make such monumental decisions for another person. That is why it is critical that you speak with your loved ones about certain scenarios and discuss these decisions with an experienced elder law attorney who can guide you in what documentation is necessary and in everyone’s best interest, from a power of attorney to a health care proxy to any number of other legal documents that help guide such medical decisions.